United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE.
are the objections filed on March 10, 2017, by the
Commissioner to the magistrate judge's Proposed Findings
and Recommendation (“PF&R”).
March 10, 2016, James Brian Huffman (“plaintiff”)
instituted this civil action pursuant to 42 U.S.C. §
405(g). Plaintiff seeks judicial review of the
Commissioner's administrative decision denying his
application for disability insurance benefits and
supplemental security income.
action was referred to United States Magistrate Judge Dwane
L. Tinsley for consideration, pursuant to 28 U.S.C. §
636(b)(1)(B) and standing order in this district. The
magistrate judge filed his PF&R on February 28, 2017. In that
document, the magistrate judge recommends that
plaintiff's motion for judgment on the pleadings be
granted, that the motion for judgment on the pleadings filed
by the Commissioner be denied, that the Commissioner's
final decision be reversed, and that the case be remanded to
the Commissioner for further proceedings. See PF&R, 23. On
March 10, 2017, the Commissioner filed objections to the
PF&R. Plaintiff responded to the objections on March 20,
Commissioner objects to the PF&R on two grounds. First, she
states that the magistrate judge erred in finding that remand
was required due to the ALJ's failure to evaluate
plaintiff's IQ score of 70, because “an IQ score
alone is insufficient to prove disability at the listings
stage.” Commissioner's Objections to PF&R
(“Obj.”) at 2. Second, she states that the
magistrate judge erred in finding that the ALJ did not apply
the special technique required by § 404.1520a(a) in
assessing a claimant's mental impairments. Id.
Standard of Review
court reviews de novo those portions of the magistrate
judge's PF&R to which objections are timely filed. 28
U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982); see also 20 C.F.R. §
416.927(e)(1) (ultimate decision regarding disability
determinations rests with the Commissioner). On the other
hand, the standard for review of the Commissioner's
decision is rather deferential to the Commissioner, for,
“[u]nder the Social Security Act, [a reviewing court]
must uphold the factual findings of the [ALJ] if they are
supported by substantial evidence and were reached through
application of the correct legal standard.” Johnson
v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005);
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.
1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. § 405(g).
Substantial evidence is that which “a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal citations omitted).
reviewing for substantial evidence, [a district court does]
not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.” Johnson, 434 F.3d at 653.
Substantial evidence is by definition more than “a mere
scintilla, ” Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996), but “may be somewhat less than a
preponderance, ” Blalock v. Richardson, 483
F.2d 773, 776 (4th Cir. 1972) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1996)).
Social Security regulations establish a “sequential
evaluation” for the adjudication of disability claims.
See 20 C.F.R. §§ 404.1520(a), 416.920. The first
question is whether the claimant is currently engaged in
gainful employment. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). If not, the second question is whether the
claimant suffers from a severe impairment. §§
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If so,
the third question is whether the claimant's impairment
meets or equals any of the specific impairments listed in
Appendix 1 to Subpart P of the regulations. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, the
claimant is considered disabled, and is awarded benefits.
Id. If not, the inquiry continues on to whether the
claimant's impairments prevent the performance of past
relevant work. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant satisfies this inquiry,
the claimant establishes a prima facie case of disability,
shifting the burden to the Commissioner for the fifth and
final inquiry. Hall v. Harris, 658 F.2d 260, 264
(4th Cir. 1981); McLain v. Schweiker, 715 F.2d 866,
868-69 (4th Cir. 1983). The final inquiry is whether the
claimant is able to perform other forms of substantial
gainful activity considering the claimant's impairments,
age, education and prior work experience. §§
special process is involved when the claimant alleges a
mental impairment. §§ 404.1520a(a), 416.920a(a).
The Social Security Administration (“SSA”) must
first evaluate the claimant's symptoms, signs and
laboratory findings to determine whether claimant has a
medically determinable mental impairment and document its
findings. Id. If a medically determinable mental
impairment is established, the ALJ must then “rate the
degree of functional limitation resulting from the
impairment” by examining the extent to which the
impairment interferes with the claimant's “ability
to function independently, appropriately, effectively, and on
a sustained basis. §§ 404.1520a(b)(2), (c)(2) and
416.920a(b)(2), (c)(2). In doing so, the ALJ considers
whether the claimant's “activities of daily
living[, ] social functioning[, ] and concentration,
persistence or pace” are mildly, moderately, markedly,
or extremely limited, or not limited at all. §§
404.1520a(c)(3), (4) and 416.920a(c)(3), (4). “A rating
of ‘none' or ‘mild' in the first three
areas”-that is, activities of daily living; social
functioning; and concentration, persistence, or pace-
“and a rating of ‘none' in the [category of
episodes of decomposition] will generally lead to a
conclusion that the mental impairment is not ‘severe,
' unless the evidence indicates otherwise.”
White v. Astrue, 637 F.Supp.2d 363, 368 (S.D.W.Va.
2009) (quoting 20 C.F.R. §§ 404.1520a(d)(1) and
416.920a(d)(1)). The ALJ then must determine if the mental
impairment is severe and if so, whether it qualifies as a
listed impairment. § 404.1520a(d). If the impairment is
severe but does not meet the requirements of a listing, the
ALJ must assess the claimant's residual functional
capacity (“RFC”) in light of how all of the
claimant's impairments constrain his work abilities.
§ 404.1520a(d)(3). The ALJ must document each step of
this process. § 404.1520a(e)(4).
one, the ALJ determined that plaintiff had not engaged in
substantial gainful activity from October 15, 2010, the
application date, through September 30, 2015, plaintiff's
date last insured. Tr. at 14. At step two, the ALJ concluded
that plaintiff had the following severe impairments: a
history of a left tibia fracture, history of a T-11 fracture,
osteoarthritis, history of head traumas with borderline
intellectual functioning, history of a thoracic spine trauma,
and depression. Id. At step three, the ALJ concluded
that plaintiff's impairments did not meet or equal any
listing contained in the Listing of Impairments. Id.
The ALJ next found plaintiff to have a RFC to perform
sedentary work, with the additional limitations that the work
unskilled and low stress without high production demands; no
more than simple, routine, repetitive tasks with simple
instructions; no interaction with the public; and only
minimal indirect contact with others at the worksite.
Id. at 16. Based on plaintiff's RFC, the ALJ
determined that he could not return to his past relevant
work, but could perform jobs such as an inspector, machine
feeder, or sorter. Id. at 19-20. Based on these
findings, plaintiff was denied benefits. Id. at 20.
magistrate judge recommends that the court reverse the
decision of the ALJ and remand the case to the Commissioner
for further proceedings. Specifically, the magistrate judge
concluded that the ALJ's decision is not based on
substantial evidence because, “the ALJ's failure to
explain his reasoning precludes a court from undertaking a
‘meaningful review' of his findings, ”
particularly in light of evidence contained in the record
that plaintiff may meet or equal Listing 12.05C. PF&R at
Listing of Impairments, as a general matter, describes, for
each anatomical system, impairments that are considered
“severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or
work experience.” 20 C.F.R. §§ 404.1525(a),
416.925(a). In order to meet a listing, a claimant's
impairment must “meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521,
530 (1990) (emphasis in original). “For a claimant to
qualify for benefits by showing that his . . . combination of
impairments . . . is ‘equivalent' to a listed
impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment.” Id. (citing 20 C.F.R. §
416.926(a)) (emphasis in original). The ALJ must identify
listings that are relevant to the claimant and compare
“‘each of the listed criteria to the evidence of
[the claimant's] symptoms.'” Ketcher v.
Apfel, 68 F.Supp.2d 629, 645 (D. Md. 1999) (quoting
Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.
Listing 12.05 provides,  in pertinent part, Intellectual
disability: Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22.
The required level of severity for this disorder are met when
the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing
an additional and significant work-related limitation of
. . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
order to meet Listing 12.05C, a claimant must satisfy the
requirements of the introductory paragraph to the listing as
well as the specific criteria of paragraph C. 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.00A.
to Listing 12.05C, the ALJ concluded,
[T]he “paragraph C” criteria of listing 12.05 are
not met because the claimant does not have a valid verbal,
performance or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and
significant work-related limitation of function. The evidence
failed to establish IQ scores prior to the age of 22 and
significant restrictions in adaptive behavior as required in
Tr. at 16.
to the magistrate judge, “the record contains evidence
suggesting that [plaintiff] may meet or equal Listing
12.05C.” PF&R at 12. The ALJ mentions elsewhere in his
opinion that plaintiff had IQ subscores ranging from 62 to 81
and a full scale IQ score of 70 during his evaluation, when
he was 37 years old, by Joann Daley, M.A. Ed.S., a clinical
psychologist, in December 2012. Tr. at 18. This does seem to
contradict his statement at step three that plaintiff
“does not have a verbal, performance, or full scale IQ
of 60 through 70.” Id. at 16. The magistrate
judge was unable to determine whether the ALJ
“erroneously overlooked” the IQ score or
dismissed it because it was not obtained before plaintiff,
whose date of birth is November 4, 1975, was 22. PF&R at 12.
The magistrate judge found that although the relevant IQ
score in 2012 was not obtained before plaintiff was 22,
“there are many possible reasons why an adult would not
have obtained an IQ test early in life and the absence of an
IQ test during the developmental years does not preclude a
finding of mental retardation predating age 22. . . . [I]n
the absence of any evidence of a change in a claimant's
intelligence functioning, it must be assumed that the
claimant's IQ had remained relatively constant.”
PF&R at 12-13 (citing Luckey v. U.S. Dept. of Health &
Human Services, 890 F.2d 666, 668 (4th Cir. 1989).
Commissioner argues that the magistrate judge erred in
finding remand was required for the ALJ's failure to
consider plaintiff's IQ score of 70. The Commissioner
does so because the ALJ found that plaintiff failed to meet
the other requirements of Listing 12.05C. Obj. at 2.
According to her, “regardless of Plaintiff's IQ
score, the ALJ reasonably found that Plaintiff failed to meet
his burden of proof because he did not establish significant
deficits in adaptive functioning as required by the
Listing.” Id. at 3. In support of this
contention, the Commissioner cites to evidence in the record
[P]laintiff had a strong employment history and worked for
more than a decade as a construction laborer with a labor
union, a job that required him to use machines, tools, and
equipment such as jackhammers (Tr. 31, 174-76). Indeed
Plaintiff's earnings show that he worked regularly
between 1993 and 2010, earning between $20, 000 and $30, 000
for several years (Tr. 164). The record also suggests that
Plaintiff did not stop working in 2010 due to his borderline
intellectual functioning, but because he was laid off from
his job (Tr. 32).
In addition to a strong work history, the record also
demonstrates that Plaintiff was able to perform and did
perform a variety of activities that are inconsistent with
the definition of deficits in adaptive functioning . . . .
Notably, Plaintiff lives in a house with his wife who works
full-time; cooks simple meals; helps dad on a farm; drives a
four-wheeler or tractor; watches football on TV and can
follow the course of the game; watches ...